Select Page

Trusts and Wills
Wayne State University Law School
Cancelosi, Susan Evans

Trusts Outline F07- Cancelosi

Donative Intent- intent of giftor

most important concept theoretically in US
only lip service? case law shows that donative intent is frequently frustrated

Intestacy Provisions- intended to create what legislatures believe donors would want

i. legislative substitute for donative intent

Absolute right to do what you want with your property upon death?

no- nothing illegal, estate taxes
Jefferson & Blackstone- historically no right to do what you want with your money upon death

i. theoretical right to statutorily eliminate ability to leave money, the right is a gift from the legislature, which le could take away
ii. sudden shift in the 1980’s
iii. facts- Indian land inheritance ?
1. head of household gets acreage
2. passing on property, undivided tracts of land w/ lots of owners w/ fractional interest in property
3. Congress tries to fix problem- Indian land legislation (1983)
a. land had to go back to tribe
iv. suit by heirs of property
1. Heir-inherits through intestacy
2. devisee: inherit from will
a. arg- devisee had no vested interest in land until death
b. no right to property as devisee until devisor dies
v. not about rights of heirs and devisees to receive, rather the right of decedents to transmit the property

Concepts of Wealth Transmission
i. Paris Hilton example
ii. Pros/Cons of unfettered transmission
1. Pros-
a. cost of capital reduced, b/c incentive for more savings
b. reduces costs to public coffers, health care
c. allows private choice to support philanthropy
d. incentive for family to oversee preservation of family property
i. homes, businesses
2. Cons
a. artificial, de facto Aristocracy being created
b. de Tocqueville- args against concentration of wealth, arg against formation of oligarchic wealth class construct
c. Paris Hilton arg- creates worthless, unmotivated kids
ii. Potential Solutions
1. set limits for transfer w/o estate tax
Introduction to Estate Planning
Power to transmit property at death

Old View: Right of succession to property by will or intestacy of a deceased is of statutory creation and the state may take that right away Day [3] New View: The government cannot completely eliminate the right to transfer property at death Hodel v Irving [3]

o Basic Rule: The right to dispose of property through intestacy or will is a fundamental property right and cannot be abolished. However, some changes/adjustments to the law can be ma

ial restraints on marriage are allowed (if reasonable)
Time: Marry within a certain time is ok
Religious restraints on marriage are ok (this is arguably not restricting marriage rather encouraging a certain religion) Shapira (ok to require marriage into a religious family as long as the condition is not too unreasonable)

o Religion Requirement violate public policy and religious freedom (ie “you have to remain catholic”)
o Destruction of property – cts will refuse to allow destruction bc this encourages economic waste (burning a house will not be upheld)

Exception: de minimus destruction (i.e. burn a diary probably ok)

o Some state laws may control (may or may not be able to completely disinherit children / spouse)
o Racial limitations (ie cannot marry an African American is not allowed)
o Creditor’s Rights: May not be able to give away something that a creditor has a right in
Illegal Activity: Cannot encourage illegal activity